Fun fact: Donald Trump isn’t even three weeks into his Presidency! If you’re like me, you are already tired of winning.
Like the previous two weeks of Trump, this one has been overwhelming, especially if you’re concerned about the First Amendment. We’re going to focus on the big cases here, and maybe come back in a future week to some things that slip through the cracks.
If there was a theme this week in First Amendent News, it was “Conservatives Misintepreting the First Amendment.” So grab your handy study guide, and let’s dive in.
Does the Alt-Right have Alt-Rights?
A massive protest by students at UC Berkeley led staff to cancel a scheduled speech by Twitterless alt-right troll Milo Something-or-Other. The move ignited debates across the Internet and inspired our President, who has not yet made any statement about the alt-right terrorist who murdered innocent Canadian Muslims during prayer service, to threaten the university’s federal funding.
Despite outcry, of course, Milo’s First Amendment rights were in no way impinged. The First Amendment does not protect against opposing speech from fellow citizens, nor does it guarantee a podium and a microphone. It is a protection against punishment or censorship by the government — and it is likely, had Milo the courage to step out onto the sidewalk and engage his speech rights the way any other American may, that the government (in the form of police) would have protected him.
Instead Milo ran away, because alt-right trolls are cowardly, and claiming persecution fits his narrative and his brand better than, you know, using his freedom of speech. The protesters, meanwhile, fully engaged their First Amendment rights to assembly and expression, and responded to offensive speech in exactly the right way — by raising their own voices.
The First Amendment does not mean the police force thousands of protesters to keep silent so you can give your Nazi PowerPoint. That said, I’ll step off my soap box.
Religion, Refugees, and Resistance
Late last week President Trump kept his promise to ban Muslims from the United States with just about the sloppiest roll-out of immigration policy in US history. You may have heard of this one. In response, thousands of Americans turned up at airports across the country to protest. Notably, Presidential sycophant/Svengali Steve Bannon blamed these protests, which happened in cities like Indianapolis, Louisville, Omaha, and Nashville on the metropolitan coastal elites. One wonders where he thinks the coast is.
On Thursday, more than one thousand small business owners in New York City, most of Yemeni nationality, closed their shops for eight hours to join a protest at a federal courthouse in Brooklyn. Messages of solidarity and donations came from neighbors and supporters in New York City and worldwide.
There is debate as to whether Trump’s Muslim Ban (which, notably, extends only to nations in which Trump does not have personal business interests) violates the Constitution’s prohibition on religious discrimination, but many experts say it runs afoul of Constitution law in multiple ways. Immigration law is complex, and the President does have significant leeway, but several federal judges have issued orders suspending various elements of the ban on several rationale. Further court scrutiny is still to come, and the ultimate fate of the ban remains to be seen.
Trump Threatens LGBTQ+ Rights… or Does He?
The queer community watched Monday as reports emerged that Trump would reverse President Obama’s executive order protecting LGBT employees When word spread Tuesday that Trump would keep Obama’s policy in place, some in the community expressed cautious relief. Then on Thursday, the press obtained a leaked draft of an executive order protecting “Religious Freedom” that would legalize discrimination based on sexual orientation and gender identity.
Just another week with Trump in the White House.
Trump’s order would also limit women’s access to contraception under the ACA, and would present particular harm to trans Americans. The administration has stated he has “no immediate plans” to sign the order, though it’s up in the air what exactly that means — that he won’t sign it this week? Today? That he doesn’t have a pen in his hand at this moment? Who can say?!
This SCOTUS Nomination Gor-Sucks
Speaking of “religious freedom,” the likely next member of the Supreme Court (occupying the seat left vacant by the illegal and immoral obstruction of former-almost-justice Merrick Garland) has a lot of scary ideas. We don’t yet know his views on abortion since, like many lawyers hoping for a Supreme Court appointment, he has avoided the topic almost entirely.
We know that Gorsuch was unhappy with the Hobby Lobby decision, which allowed employers to decide whether female employees can take birth control, because he didn’t think it gave the employers enough authority. And we know that he has strong opinions that Americans should not be permitted the autonomy over their bodies to decide when they want to die. Because, you know, God and stuff.
On LGBTQ+ rights, Gorsuch has expressed an opinion that it should be left to so-called states rights, and state legislators should have say over what queer people can do with their own bodies.
Oh, and he really hates liberals. In high school he thought it was a hilarious joke to compare liberals with fascists, and as recently as 2005 he published essays about how awful liberals are.
So… Not great.
The Collection Plate PAC
Sigh. Staying on the theme of so-called “religious freedom,” President Trump vowed to “destroy” the law that prohibits churches, as non-profit organizations, from engaging in unlimited lobbying and political advocacy.
It’s hard to get too upset about losing a law that really hasn’t been enforced in recent years. But it’s worth pointing out that, once again, there is no First Amendment violation in the law.
The law does not prohibit churches from political speech. In fact it solely addresses their non-profit tax status. Under the US Tax Code, specific types of activity are granted non-taxable status. Religious practice is one of those types of activity; political advocacy is not.
Nonprofits are permitted only a limited amount of political advocacy as part of their mission. Non-profit organizations that do a lot of lobbying therefore establish multiple corporate entities; the ACLU, where I was on staff as a fundraiser, existed as both a 501(c)(3) charity, which did little to no lobbying work and to which contributions were tax deductible, and a 501(c)(4) lobbying organization, which funds the political advocacy work and to which donations (including membership dues) are NOT tax deductible.
Churches nationwide, however, have been getting away with spending massive amounts of money on lobbying and political advocacy all under the banner of their 501(c)(3) tax status. Many people (myself included) have insisted that they should be subject to the same rules as other charities, but there has been little to no effort to enforce the tax code. Now Donald Trump wants to “destroy” the law that has not been enforced.
If churches are spending a lot of money on political advocacy, they should be paying taxes on that particular money. That’s the only question here, there is no “prohibition” on any type of speech or religious expression.
On second thought, yes I can. Because we live in the era of the “30,000 foot view.” In our modern age, data is available and accessible, and big systems-wide analysis dominates our media. But when we reduce humans to data points — whether it’s Jake Fuentes writing about a systemic power takeover, Nate Silver forecasting election outcomes, or Barrack Obama assuring us we’ll all be fine — we lose sight of the individual experiences and stories that actually matter.
Mr. Fuentes might have a point about the Trump team testing America’s appetite for fascism. In fact, I think he does. But what he might regard as a “head fake” or dry run does serious harm to actual people.
Dozens were detained in airports nationwide, some for days. Reports say they were subjected to interrogation tactics, and pressed to sign away their rights Others, fleeing religious persecution and fearing for their lives, were turned away and sent back into harm’s way. Seniors, some with very little language access, were kept from family members waiting for them right outside of customs.
All of these are real human beings, experiencing real suffering, at the hands of a government whose sole rationale for existence is to protect the rights and well-being of the innocent. They are more than data points, more than pawns in the game of global politics. To describe the policy that harmed them as a “head fake,” to imply it is a distraction, is to minimize their experience.
Closing the Empathy Gap
The world is big, and data analysis can reveal illustrative trends that are useful to governance and policy. When we let that data stand in for actual lived experience, however, we initiate a kind of cognitive dissonance that sews distrust and disdain for government.
This was likely one of President Obama’s greatest shortcomings. Time and again we watched our President stand at a podium and tell us what a success the ACA was, or how job growth figures revealed the strength of our economic recovery. And those things were certainly true, from a macro-analytic scale. The trouble is, it wasn’t the whole story.
For those people whose premiums were skyrocketing out of reach, or those in communities folding up for lack of industry, macroeconomic trends are at best meaningless. At worst, they sound like outright lies.
Imagine living in a bombed out Rust Belt town, surrounded every day by the signs of industrial collapse and economic ruin. Every time the President talks about the economy, he’s touting job growth numbers, and record GDP. Contrast that with your lived experience, and of course you are going to feel passed over. Of course you are going to feel resentful.
To be clear, I’m not joining the ranks claiming we need to “listen more to the White Working Class,” which is most often code for endorsing white supremacy. What I am saying is that macroeconomic analysis has its utility, but that a government is obligated to also understand the human stories behind the figures.
A Product of the Shrinking News Media
I suspect that the movement toward macro-analysis is, like many of the issues that plague our current political discourse, a result of the reduction in staff and scope of the modern news media.
It comes down to simple math: With fewer beat reporters available to meet and interview individuals, it’s easier and more cost-effective for editors and anchors to rely on data analysis. Why send reporters to talk with laid off workers, when you can cut together a serviceable story from the Bureau of Labor Statistics web site?
This is not to suggest there aren’t dedicated journalists out there doing the hard work of speaking with actual humans. Trump’s Muslim Ban yielded a particular outpouring of real human stories, possibly because those victimized were condensed into major city airports, convenient for networks and newspapers. This is one thing that makes Fuentes’s “head fake” argument so wrong-headed; for once, the human cost of a bad policy was readily visible.
That said, there are reporters working to get those stories every day — there just aren’t nearly as many as there used to be.
It’s increasingly questionable whether Americans really know our country at all. The tendency to substitute broad demographic statistics for individual engagement lies at the heart of many recent narratives —the Democrats’ failure to recognize Rust Belt disenchantment, liberal America’s shock at the power and prevalence of white supremacy, White astonishment and denial at the abuse of Black communities by police… The list goes on.
We have an obligation, as a society, to focus not only on the big picture but on the millions of small pieces that make it up. Humans are not data points. Families are not clusters. Trends are not universal.
We need to take more time to pay attention to one another, to recognize and value the lived experience and inherent value of each individual human. We are, after all, a government of the people, for the people, by the people — not “a statistically significant sample” of the people.